UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 99-10028
__________________
JAMES L. BROWN,
Petitioner-Appellant,
versus
GARY L. JOHNSON,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(3:98-CV-1869-G)
_________________________________________________________________
May 8, 2000
Before REAVLEY, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Texas prisoner James L. Brown (#269883) appeals, pro se, the
dismissal of his federal habeas application as time-barred, our
court having granted a Certificate of Appealability (COA) on
whether the one-year limitations period of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214 (1996), should be equitably tolled, because the
prison law library did not receive a copy of AEDPA until
approximately 11 months after its effective date and he,
correspondingly, did not receive notice of AEDPA’s limitations
period. We AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
In April 1977, a jury convicted Brown for his third felony.
That May, he was sentenced to life imprisonment.
Brown was paroled in December 1989. Parole was revoked in
February 1993.
In December 1997, Brown filed a state habeas application,
challenging the revocation. The application was denied in July
1998 by the Texas Court of Criminal Appeals without written order.
Ex Parte Brown, No. 38,013-01 (Tex. Crim. App. 15 July 1998).
Brown filed a federal habeas application that August. The
magistrate judge recommended dismissal as time-barred, pursuant to
28 U.S.C. § 2244(d). The recommendation was adopted by the
district court. Brown’s motion to alter judgment was denied.
The district court denied Brown a COA. Our court granted it,
however, on whether the failure of the prison law library to
receive a copy of AEDPA for approximately 11 months after its
effective date warranted equitable tolling.
II.
Section 2244(d), in pertinent part, states:
(1) A 1-year period of limitation shall apply
to an application for a writ of habeas corpus
by a person in custody pursuant to the
judgment of a State court. The limitation
period shall run from the latest of—
(A) the date on which the judgment
became final by the conclusion of direct
review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to
filing an application created by State action
in violation of the Constitution or laws of
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the United States is removed, if the applicant
was prevented from filing by such State
action;
....
(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the
pertinent judgment or claim is pending shall
not be counted toward any period of limitation
under this subsection.
28 U.S.C. § 2244(d) (emphasis added).
Prisoners whose convictions became final prior to 24 April
1996, AEDPA’s effective date, had one year after that date in which
to file for federal habeas relief. Flanagan v. Johnson, 154 F.3d
196, 200 (5th Cir. 1998). As reflected above, AEDPA’s limitations
period is suspended while a state post-conviction or other
collateral review is pending. 28 U.S.C. § 2244(d)(2); see Fields
v. Johnson, 159 F.3d 914, 916 (5th Cir. 1998).
AEDPA’s one-year limitations period is a statute of
limitations. Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998),
cert. denied, ___ U.S. ___, 119 S. Ct. 1474 (1999). Therefore, it
may be equitably tolled in rare and exceptional circumstances. Id.
Absent equitable tolling, Brown’s petition is time-barred,
because, although his parole was revoked in 1993, he did not seek
habeas relief (in this instance, state) until December 1997, after
the limitations period had expired in April. He contends he is
entitled to equitable tolling because he is proceeding pro se and
did not receive notice of AEDPA until 14 April 1997, approximately
11 months after its effective date, when the prison law library
received a copy. He maintains he could obtain notice of AEDPA’s
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limitations period only through that library and, consistent with
28 U.S.C. § 2244(d)(1)(B), its failure to give him notice was a
state-created impediment to his timely seeking federal habeas
relief.
In Felder v. Johnson, 204 F.3d 168, 170 (5th Cir. 2000),
Felder sought equitable tolling of AEDPA’s limitations period,
stating he was incarcerated before AEDPA’s effective date; was
proceeding pro se; was innocent of the crime for which he was
convicted; and was unaware of AEDPA’s requirements, due to
inadequacies of the prison law library. He claimed AEDPA was not
made available to him until September 1997. Id.
But, our court held ignorance of AEDPA’s limitations period,
caused by not receiving notice of changes in the limitations period
until after it expired, did not warrant equitable tolling. Id. at
172-73.
Brown raises the same factual scenario as Felder, except he
claims the prison law library received a copy of AEDPA in April
1997, five months earlier than claimed in Felder and within the
limitations period (expired approximately two weeks later). No
authority need be cited for our being bound by our circuit
precedent. Accordingly, Brown’s ignorance of AEDPA’s limitations
period does not warrant equitable tolling.
B.
Brown also claims application of the limitations period
violates the Suspension Clause and Ninth Amendment, because
Congress exceeded its authority in enacting AEDPA. A COA was not
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granted for this issue. Nor has Brown requested it be so
certified. Accordingly, we cannot consider it. See Lackey v.
Johnson, 116 F.3d 149, 151-52 (5th Cir. 1997) (limiting review to
issues specified in COA).
III.
In the light of the foregoing, the dismissal of Brown’s
application is AFFIRMED. Therefore, the State’s motion to
supplement the record is DENIED as moot.
AFFIRMED; MOTION DENIED
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Brown v. Johnson
Combined Opinion